Filed 8/19/20 P. v. Del Carmen CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

JONATHAN DEL CARMEN 

Defendant and 

Respondent.

 B299604 

 (Los Angeles County

 Super. Ct. No. BA427590-02)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, George G. Lomeli, Judge. Reversed and 

remanded with directions. 

Elizabeth K. Horowitz, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Charles S. 

Lee and David W. Williams, Deputy Attorneys General for 

Plaintiff and Respondent. 

_________________
2

Jonathan Del Carmen pleaded guilty to second degree 

murder pursuant to a negotiated agreement and was sentenced 

to an indeterminate state prison term of 15 years to life. A few 

months after he was sentenced, Del Carmen petitioned for 

resentencing pursuant to then newly enacted Penal Code 

section 1170.95.1 The superior court denied the petition solely on 

the ground section 1170.95 was unconstitutional. We reverse. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The Killing of Xinran Ji

According to the evidence presented at Del Carmen’s 

preliminary hearing, in July 2014 Del Carmen drove three 

friends, Alberto Ochoa, Andrew Garcia and Alejandra Guerrero, 

on a “flocking” mission, a term Ochoa told police meant to “rob” 

someone. They found Xinran Ji, a 24-year-old USC graduate 

student, walking home to his apartment from a study session just 

after midnight. Del Carmen stopped the car at Ochoa’s request. 

Ochoa, Garcia and Guerrero got out the car and chased Ji on foot. 

In a particularly brutal attack, Ochoa and Garcia beat Ji with a 

metal baseball bat when Ji refused to relinquish his backpack. 

Guerrero also participated in the attack. Del Carmen remained 

in the car. At one point during the attack, Del Carmen started to 

drive away. Garcia, Ochoa and Guerrero stopped their assault 

and jumped back into the car. Del Carmen and his companions 

left the scene. Ji, bloodied and bleeding with a fractured skull, 

returned to his apartment, where he died a short time later. The 

attack was captured on surveillance cameras. 

1

Statutory references are to this code.
3

2. The Information and Negotiated Plea Agreement

An information filed January 23, 2015 charged Del Carmen 

and his confederates with special circumstance murder. (§ 190.2, 

subd. (a)(17).) Pursuant to a negotiated plea agreement, 

Del Carmen pleaded no contest to second degree murder in July 

2018 and was sentenced to an indeterminate state prison term of 

15 years to life. 

3. Senate Bill No. 1437 and Del Carmen’s Petition for 

Resentencing

a. Senate Bill No. 1437 

Senate Bill No. 1437 (2017- 2018 Reg. Sess.) (Stats. 2018, 

ch. 1015) (Senate Bill 1437), effective January 1, 2019, amended 

the felony-murder rule and eliminated the natural and probable 

consequences doctrine as it relates to murder through 

amendments to sections 188 and 189. New section 188,

subdivision (a)(3), provides, “Except as stated in subdivision (e) of 

Section 189, in order to be convicted of murder, a principal in a 

crime shall act with malice aforethought. Malice shall not be 

imputed to a person based solely on his or her participation in a 

crime.”

New section 189, subdivision (e), in turn, provides with 

respect to a participant in the perpetration or attempted 

perpetration of a felony listed in section 189, subdivision (a), in 

which a death occurs—that is, as to those crimes that provide the 

basis for the charge of first degree felony murder—that an 

individual is liable for murder “only if one of the following is 

proven: [¶] (1) The person was the actual killer. [¶] (2) The person 

was not the actual killer, but, with the intent to kill, aided, 

abetted, counseled, commanded, induced, solicited, requested, or 

assisted the actual killer in the commission of murder in the first 
4

degree. [¶] (3) The person was a major participant in the 

underlying felony and acted with reckless indifference to human 

life, as described in subdivision (d) of Section 190.2.” 

Senate Bill 1437 also permits, through new section 1170.95, 

an individual convicted of felony murder or murder under a 

natural and probable consequences theory to petition the 

sentencing court to vacate the conviction and be resentenced on 

any remaining counts if he or she could not have been convicted 

of murder because of Senate Bill 1437’s changes to the definition

of the crime. (§ 1170.95, subd. (b)(1).) The petition must include: 

“(A) A declaration by the petitioner that he or she is eligible for

relief under this section, based on all the requirements of

subdivision (a). [¶] (B) The superior court case number and year

of the petitioner’s conviction. [¶] (C) Whether the petitioner

requests the appointment of counsel.” (§ 1170.95, subd. (b)(1); 

see People v. Verdugo (2020) 44 Cal.App.5th 320, 326-327, review 

granted Mar. 18, 2020, S260493 (Verdugo).2 

If “the petition contains all required information,

section 1170.95, subdivision (c), prescribes a two-step process for

the court to determine if an order to show cause should issue: 

‘The court shall review the petition and determine if the

petitioner has made a prima facie showing that the petitioner

2

The Supreme Court in Verdugo, supra, S260493 ordered 

briefing deferred pending its disposition of People v. Lewis (2020) 

43 Cal.App.5th 1128, review granted March 18, 2020, S260598. 

The Court limited briefing and argument in People v. Lewis to the 

following issues: “(1) May superior courts consider the record of 

conviction in determining whether a defendant has made a 

prima facie showing of eligibility for relief under Penal Code 

section 1170.95? (2) When does the right to appointed counsel 

arise under Penal Code section 1170.95, subdivision (c)?”
5

falls within the provisions of this section. If the petitioner has

requested counsel, the court shall appoint counsel to represent the

petitioner. The prosecutor shall file and serve a response . . . and

the petitioner may file and serve a reply . . . . If the petitioner

makes a prima facie showing that he or she is entitled to relief,

the court shall issue an order to show cause.’” (Verdugo, supra, 

44 Cal.App.5th at p. 327.)

Once the order to show cause issues, the court must hold a

hearing to determine whether to vacate the murder conviction

and to recall the sentence and resentence the petitioner on any

remaining counts. (§ 1170.95, subd. (d)(1); see Verdugo, supra,

44 Cal.App.5th at p. 327.) At the hearing the prosecution has the

burden of proving beyond a reasonable doubt that the petitioner is

ineligible for resentencing. (§ 1170.95, subd. (d)(3).) The 

prosecutor and petitioner may rely on the record of conviction or

offer new or additional evidence to meet their respective burdens.

(See People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review

granted Mar. 18, 2020, S260598.) 

b. Del Carmen’s section 1170.95 petition

In January 2019 Del Carmen petitioned for resentencing 

under section 1170.95. In his petition on the Re:Store Justice 

form (see Verdugo, supra, 44 Cal.App.5th at p. 324 & fn. 2), Del 

Carmen checked boxes declaring an information had been filed 

against him allowing the prosecution to proceed under a theory of 

felony murder or murder under the natural and probable 

consequences doctrine; he pleaded no contest to first or second 

degree murder in lieu of going to trial because he believed he 

could have been convicted of first or second degree murder at 

trial pursuant to the felony-murder rule or the natural probable 

consequences doctrine; and he could not now be convicted of first 
6

or second degree murder because of the amendments to 

sections 188 and 189. He also requested appointment of counsel 

during this resentencing process and checked additional boxes 

indicating he was “not the actual killer,” “did not, with the intent 

to kill aid, abet, counsel, induce, solicit, request or assist the 

actual killer in the commission of murder in the first degree,” and 

“was not a major participant in the felony [nor] act[ed] with 

reckless indifference to human life during the course of the crime 

or felony.” 

The People opposed the petition, arguing exclusively that 

section 1437 was unconstitutional. Del Carmen filed a reply.

On June 14, 2019 the superior court denied the petition.3 

The court stated, “Although, from the totality of the evidence it 

appears that the petitioner may be entitled to relief pursuant to 

Penal Code [1170.95]/SB 1437 as he was neither the actual killer 

nor one who with the intent to kill aided in the killing nor one 

who was a major participant who acted with reckless 

indifference, the court is nonetheless denying the instant petition 

on constitutional grounds,” specifically, that the legislation was 

“unconstitutional in the manner that it was enacted.” The court 

reasoned Senate Bill 1437 impermissibly amended two California 

initiatives, Propositions 7 (the Death Penalty Act, approved by 

the voters in November 1978) and 115 (the Crime Victims Justice 

Reform Act, approved by the voters in June 1990); violated the 

3 At the June 14, 2019 hearing on the petition, Del Carmen 

was represented by the same appointed counsel who had 

represented him during his negotiated plea agreement. It 

appears, but is by no means clear, the superior court appointed 

counsel prior to the hearing pursuant to section 1170.95, 

subdivision (c). 
7

California Constitution (as amended by Proposition 9 in 2008, the 

Victims’ Bill of Rights Act of 2008, commonly known as Marsy’s 

Law) insofar as it purported to vacate final judgments in criminal 

cases; and violated the separation of powers doctrine by 

infringing on core judicial functions.

DISCUSSION

1. Section 1170.95 Is Constitutional 

Del Carmen contends, and the Attorney General agrees, 

the superior court erred in concluding section 1170.95, as enacted 

through Senate Bill 1437, was unconstitutional. In a 

comprehensive analysis of Propositions 7 and 115 and 

Senate Bill 1437, as well as the separation of powers doctrine and 

victims’ rights to finality of judgments as protected in Marsy’s 

Law, our colleagues in Division Two of the Fourth District in 

People v. Johns (2020) 50 Cal.App.5th 46, 63-69 rejected the 

reasoning employed by the superior court in this case and held 

Senate Bill 1437 is constitutional. 

All other courts of appeal that have considered any of these 

grounds for a constitutional attack on Senate Bill 1437 have 

likewise rejected them. (See, e.g., People v. Prado (2020) 

49 Cal.App.5th 480; People v. Smith (2020) 49 Cal.App.5th 85, 

review granted July 22, 2020, S262835; People v. Bucio (2020) 

48 Cal.App.5th 300; People v. Solis (2020) 46 Cal.App.5th 762; 

People v. Cruz (2020) 46 Cal.App.5th 740; People v. Lamoureux

(2019) 42 Cal.App.5th 241.) We find the reasoning in these cases 

compelling and adopt it as our own. 
8

2. On Remand the Superior Court Must Determine Whether 

an Order To Show Cause Should Issue 

Although Del Carmen and the People agree reversal of the 

court’s order denying Del Carmen’s petition is required, they 

disagree on the procedure to be applied on remand. Relying on 

the court’s statement that it appeared Del Carmen would be 

entitled to relief under section 1170.95, Del Carmen requests we 

direct the superior court on remand to immediately vacate his 

murder conviction and resentence him or, at least, require it to 

issue the order to show cause as provided in section 1170.95, 

subdivision (c). The People, on the other hand, recognizing the 

superior court must find Del Carmen has made a prima facie 

showing he is entitled to relief before issuing an order to show 

cause, insist the court made no such finding when it denied the 

petition on constitutional grounds. 

The record supports the People’s argument. Although the 

court stated “it would seemingly appear” Del Carmen was 

entitled to relief, that observations falls short of the finding 

required by the statute for issuance of an order to show cause. 

(§ 1170.95, subd. (c); Verdugo, supra, 44 Cal.App.5th at pp. 328-

333.) Moreover, contrary to Del Carmen’s truncated view of the 

process, after an order to show cause issues, absent a stipulation 

that he is eligible to have his murder conviction vacated and 

should be resentenced (§ 1170.95, subd. (d)(2)), the court must 

hold an evidentiary hearing to determine whether to vacate the 

murder conviction and to resentence Del Carmen (§ 1170.95, 

subd. (d)(1)). While Del Carmen points to evidence in the record 

to support his petition, the initial finding whether a prima facie 

showing has been made for issuance of an order to show cause 

must be made by the superior court in the first instance. 
9

DISPOSITION

The order denying Del Carmen’s section 1170.95 petition 

for resentencing on constitutional grounds is reversed. On 

remand the superior court is to determine whether an order to 

show cause should issue under section 1170.95, subdivision (c), 

and, if an order to show cause is issued, to conduct further 

proceedings in accordance with section 1170.95, subdivision (d).

PERLUSS, P. J.

We concur:

SEGAL, J

FEUER, J.